Opinion
31783.
DECIDED DECEMBER 5, 1947.
Manslaughter; from Chattooga Superior Court — Judge Porter. May 26, 1947.
Moses E. Brinson, John W. Davis, J. Ralph Rosser, for plaintiff in error.
E. J. Clower, Solicitor-General, T. J. Espy Jr., G. W. Langford, contra.
1. The right given the defendant in a criminal case to make to the court and jury such statement in the case as he may deem proper in his defense is not subject to be conformed to rules controlling the admissibility of evidence. While the court may prevent repetition of the same statements or debar the statement of circumstances wholly disconnected with the transaction which is the basis of the crime for which the defendant is on trial, yet facts which are connected with such transaction and explanatory of the motives and conduct of the accused are not to be curtailed either by ruling or interruption, merely because they are not admissible under the rules of evidence or fail in law to present a valid defense. See Code § 38-415; also Prater v. State, 160 Ga. 138 (2) ( 127 S.E. 296); Coxwell v. State, 66 Ga. 310 (5).
2. Where the defendant in his statement to the jury admits the shooting, but claims justification, the case is not one wholly dependent upon circumstantial evidence, and the failure of the court to charge upon that subject is not reversible error.
DECIDED DECEMBER 5, 1947.
Arthur Wilson was indicted for murder by the Grand Jury of Chattooga County, at the September term 1946, of the Superior Court of said county, for that the said Wilson, on August 24, 1946, in the county aforesaid, did then and there unlawfully, feloniously, wilfully, and of his malice aforethought, kill and murder by shooting one Willie Hawkins with a pistol, inflicting upon the said Hawkins then and there a mortal wound, of which mortal wound the said Hawkins died.
The defendant entered his plea of not guilty and was placed on trial. He was found guilty of manslaughter and sentenced to one year. He filed his motion for a new trial upon the general grounds, later amending his motion by adding two special grounds. Ground 1 of the amended motion for a new trial assigns error upon the interruption of the defendant by the court while the defendant was making his statement to the jury, thereby depriving him of the privilege of making such statement to the jury as he deemed necessary and proper in his own defense. The defendant's statement and the interruption by the court were as follows: Defendant's statement: "Your Honor and Gentlemen of the jury, I was raised in this county and have been here for some time, except for the few times I have been away, and always came back, and the longest time I ever was away to serve two years, eighteen months and twelve days overseas, and I seen some pretty rugged times over there and plenty of action, and I came back in January of this year, and I was in the Navy and stationed aboard ship, and at times while I was over there lots of things happened." The court (interrupting defendant): "You are charged with killing this boy, tell the jury about that." The defendant continued with his statement: "When I came back from overseas I went to work and bought me a truck and went in the trucking business and I hauled anything."
Attached to the amended motion for a new trial was an affidavit wherein the defendant set out the statements that he would have made to the jury had he not been interrupted by the court and instructed to confine his statements to facts surrounding the killing of the deceased, in which the defendant swears that he intended to explain to the jury why he was of such a nervous mental condition; that the same was due to his service in the Pacific Theater of World War II, the ordeals through which he had been, his experiences, and especially an incident when a Japanese suicide squad attacked his ship just missing where he was standing on deck, the explosion causing the paralysis of several others near the movant and making a nervous wreck of him; that since this occasion he has never been mentally and physically the same; and that he was suffering from this condition at the time of the homicide.
Ground 2 of the amended motion for new trial assigns error upon the failure of the court to charge the jury the law with reference to circumstantial evidence, for the reason that it does not appear from the sworn testimony adduced on the trial of the case that the defendant was the person who shot and killed the deceased, and for the further reason that it appears from the testimony that at least two other persons besides the defendant were present and might have, and could have, shot and killed the deceased, and that the only basis upon which a verdict of guilty could have been returned against the defendant was evidence of a purely circumstantial nature.
Exceptions are taken to the judgment overruling the motion for a new trial as amended.
1. Section 38-415 of the Code gives to the defendant the right to make to the court and jury such statement in the case as he may deem proper in his defense. This right, however, is not entirely unlimited. While the court may so far restrain the prisoner's statement as to prevent his occupying the time of the court and jury with long, rambling, and irrelevant matter, yet as to all matters connected with the case the prisoner may make such statement as he may think proper, and he should not be restricted to stating such facts as would be admissible in evidence. It has repeatedly been held that the rules of evidence have no application to the defendant's statement. See Prater v. State, 160 Ga. 142 ( 127 S.E. 296). While it has been held that the court may properly exclude immaterial matter, it can not be said that the facts detailed by the defendant in his affidavit as those which he intended to state to the jury, had he not been interrupted by the court, are immaterial. That he had suffered a serious injury from an explosion affecting his nervous system and impairing his health both physically and mentally, was certainly material to his defense. If statements of defendants were controlled by rules of evidence, these facts might be inadmissible as such, but as before pointed out, rules of evidence do not apply to the statements of defendants and it has been expressly held that, "As to the statement of facts which are connected with such transaction and as explanatory of the motives and conduct of the accused, or as illustrative of his mental condition, the statement of the defendant can not be withdrawn from the jury, or curtailed either by rulings or interruptions, merely because the facts stated by the defendant and which constitute a part of his narrative of his connection with the case may, under the rules of evidence, be irrelevant and do not present in law a valid defense." Prater v. State, supra.
In the instant case, the interruption by the court of the defendant in making his statement occurred so early in the statement that the court had no intimation of what he was going to say or how long it would take him to say it. The purpose of giving the courts any power to regulate statements of defendants is twofold: first, without regard to rules of evidence, to prevent the defendant from injecting into the case prejudicial matter wholly foreign to the issues of the case or any connection that the defendant may have had with it; second, in the interest of the conservation of the time of the court and jury, to prevent the defendant from occupying it with long, rambling, and irrelevant matter. In the instant case, the interruption of the defendant in the making of his statement was harmful and prejudicial error requiring another trial of the case.
2. The defendant, in his statement to the jury, admitted the killing of the deceased. However, it is insisted that there was no other direct testimony tending to prove that the defendant killed the deceased, and that for this reason the court should have charged the jury the law with reference to circumstantial evidence.
Where the accused in his statement to the jury admits the shooting, but claims justification, as in the present case, the case is one not wholly dependent upon circumstantial evidence, and the failure of the court to charge upon that subject is not reversible error. See Harris v. State, 152 Ga. 193, 194 (5) ( 108 S.E. 777); Butler v. State, 143 Ga. 484 (1) ( 85 S.E. 340); Dumas v. State, 62 Ga. 58.
Since the case is being reversed on one of the special grounds, it is deemed unnecessary to pass on the general grounds.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.